Blazer v. Whitmore

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/23/12 ORDERING that plaintiffs amended complaint is DISMISSED for failure to state a claim upon which relief can be granted; and this case is CLOSED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAN BLAZER,

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Plaintiff,

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No. CIV S-11-3431 CKD P

vs.
R. PAUL WHITMORE,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has consented to have a magistrate judge conduct all proceedings in this case.

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See 28 U.S.C. § 636(c). On March 26, 2012, the court dismissed plaintiff’s complaint with leave

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to file an amended complaint. Plaintiff has now filed an amended complaint.

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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As with his original complaint, plaintiff alleges he injured his hand while

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removing sheet metal from a wall at the direction of defendant. He blames his injury on

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defendant failing to provide plaintiff with gloves.

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The Eighth Amendment’s prohibition of cruel and unusual punishment imposes

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on prison officials, among other things, a duty to “take reasonable measures to guarantee the

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safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer,

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468 U.S. 517, 526-27 (1984)). An inmate’s Eighth Amendment rights can only be violated by a

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prison official if that official exposes an inmate to a “substantial risk of serious harm,” while

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displaying “deliberate indifference” to that risk. Id. at 834.

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The facts alleged in plaintiff’s complaint simply do not state a violation of the

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Eighth Amendment. While the court assumes there is some risk of serious laceration when

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working with sheet metal barehanded, the court cannot assume all barehanded sheet metal work

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presents a substantial risk of serious laceration or other harm and plaintiff fails to point to any

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facts particular to his case demonstrating an elevated risk of harm. While it might have been
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prudent for defendant to offer plaintiff gloves before plaintiff began his work, such can not,

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under the facts alleged, amount to cruel and unusual punishment.

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Because the court has already informed plaintiff of the flaws with his Eighth

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Amendment claim and provided plaintiff and opportunity to cure the flaws by way of

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amendment, granting further leave to amend appears futile.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed for failure to state a claim upon

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which relief can be granted; and

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2. This case is closed.
Dated: May 23, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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blaz3431.dis

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